Sealed in the heart of Texas

From the Fall 2008 issue of The News Media & The Law, page 38.

Since 2004, federal authorities in Texas have conducted a sweeping public corruption inquiry that involves more than 80 “persons of interest.” Almost half of those may be public officials. The trickle of information out of the federal courthouse in El Paso suggests multiple public officials were prosecuted entirely behind closed doors, their court appearances wiped off the public docket.

Indeed, despite nine guilty pleas taken and dozens of public officials ensnared in the probe, the court kept all proceedings and filings secret. Only after two attempts to crack a window on the case, one by a local activist and another by the El Paso Media Group, did the public learn the full scope of the investigation into bribery and corrupt practices in El Paso.

It is still unclear who was behind this unprecedented level of secrecy.

Criminal cases presumed open

Secrecy in criminal proceedings has been sharply criticized by the U.S. Supreme Court. In a 1980 case originating in Virginia, the Court recognized that the public and press have a constitutional right of access to proceedings in criminal cases. This right, the Court said in Richmond Newspapers v. Virginia, was based on the “unbroken” history of public criminal proceedings as well as the fact that public access helps courts run more fairly and effectively.

Because of this access right, the Supreme Court has said no state or federal judge in the United States may shutter proceedings in a criminal case without making specific, on-the-record findings that “closure is essential to preserve higher values” than the public’s right of access and is “narrowly tailored to serve that interest.” Thus, the court must find that there is a compelling need for secrecy in order to close a criminal courtroom, and also that there is no other way of dealing with the problem. This is often called the Press-Enterprise standard, since it was created in two cases, from 1984 and 1986, brought by the Riverside, Cal. Press-Enterprise.

An activist’s challenge

Even with that presumption of openness in criminal proceedings, the El Paso prosecutions remained almost totally sealed until March 2008, when local civil rights activist Carl Starr objected.

Sito Negron, editor of The Newspaper Tree, said Starr “deserves the most credit” for chipping away at the secrecy surrounding the El Paso investigation. Though not an attorney, Starr represented himself and asked the court for permission to intervene for the purpose of unsealing the records and opening future hearings. Starr noted that the public interest in the El Paso case “cannot be overstated,” adding that “so far as the public docket reveals … the public has not had an opportunity to object and be heard on [the] sealing.”

The court largely rejected Starr’s request to unseal, concluding that the unusual secrecy was required in order for the investigation to succeed. Anticipating criticism, Judge Frank Montalvo said “this court is not asking anyone to ‘trust me because I say so.’ Instead, the court is suggesting that the public should trust the system, because the procedures in place have withstood the test of time.”

Though the court refused to unseal all the records in the case, it took two actions that Starr and others considered partial victories. First, the court provided its first public justification for the sealing of the documents in the El Paso investigation, acknowledging that it must weigh “the public’s right of access against the government’s need to maintain the integrity of its lengthy, complex, and ongoing investigation into public corruption.”

Second, the court revealed details about the investigation for the first time: That more than 80 “persons of interest” had been swept up in the probe; that 35 of them were public officials; and that three were current or former judges. The phrase “persons of interest” has no standard legal definition, though it is increasingly common. In this case, it referred to “someone with personal knowledge of the conduct under investigation, but who is not necessarily suspected of criminal conduct.” There was also information about the defendants who had pleaded guilty.

Montalvo wrote that the investigation “has allegedly uncovered systemic and wide-spread public corruption and other fraudulent activities directed by individuals within the greater El Paso community.” This allegedly included awarding government contracts and assigning cases to specific judges in exchange for payments.

The court also disclosed that it had issued a warrant to tap three telephone lines which then captured “thousands of conversations and text messages,” and that the FBI had seized more than 2,300 boxes of evidence, including 16 boxes from the office of an El Paso county judge. As of Montalvo’s ruling, seven defendants had pleaded guilty in the case; now, that number is up to nine.

For the first time, Montalvo ordered the district court clerk to post redacted versions of several documents related to the plea hearings.

Media group intervenes

Still, the court shot down much of Starr’s request. Next the El Paso Media Group, publisher of The Newspaper Tree, stepped in with a motion to intervene and unseal the records.

“We’re a very small media group, and we had to use all the resources that were available just to get this done,” owner and publisher Keith Mahar said in The Newspaper Tree. “This is a monumental task for us, but we believe in what we’re doing. It’s important.”

The group’s attorney, Jim Harrington of the Texas Civil Rights Project, argued that the press and public have a right to be present in proceedings that traditionally have been open and where “public access plays a significant positive role in the functioning of the particular process in question.” The group argued that the blanket secrecy order in the El Paso investigation was not narrowly tailored and that, contrary to what Montalvo wrote, “‘Trust me’ doesn’t work, and hasn’t worked in history, which is why our Founders set up our form of self-government in the way they did.”

In response, the government argued that the group’s request should be denied because it would be inappropriate for Montalvo to rule on the openness of hearings that hadn’t come up yet. It also argued that the request was moot because when the ninth defendant, Fernando Parra, pleaded guilty in July, he did so in an open hearing.

The government also signaled that it would, of its own accord, seek to unseal more documents. It did so on Sept. 4, filing a motion saying it wanted “to unseal redacted versions of the transcripts to the sealed hearings since the purpose for the closed proceedings in the eight hearings has been ameliorated.”

Since then, the government and the district court in El Paso have shown signs of progress on openness. The court has made on-the-record findings in support of its sealing order, and the government has signaled that closure will be the exception rather than the rule in the future.

When former El Paso school trustee Salvador M. Mena was indicted, unlike nearly all previous hearings in the case, his Sept. 9 appearance was conducted in open court.

Most recently, the court on October 14 denied the media group’s request to intervene in order to challenge the secrecy surrounding the El Paso investigation. In the same order, however, it granted the government’s motion to unseal the redacted transcripts of plea hearings.

A sprawling investigation in secret

The thick veil shrouding the El Paso investigation, which would be unusual in any case, seemed particularly surprising given the scope of the investigation — lasting so many years, encompassing so many public officials.

The charges themselves varied by defendant. Mena, for example, was charged with accepting bribes in exchange for voting to award multimillion-dollar contracts to vendors. John Travis Ketner was charged, among other things, with involvement in a scheme that gamed the otherwise-random system used to assign cases to judges.

Some in El Paso found the drastic secrecy measures justified, in part because the climate of pervasive corruption was an obstacle to the city’s economic development. For example, as Judge Montalvo noted in a May 28 order, Texas Monthly wrote in April that “having started the crackdown on corruption, (federal authorities) must see things through to the end or there will be anarchy and the longed-for boom will not occur.” But others argued that the importance of the prosecutions only heightened the need for openness.

“It raises all kinds of questions about undue influence,” Bill Weaver, political science professor at University of Texas at El Paso, told The Newspaper Tree in May. “Is it politically motivated? We just don’t know because nothing’s being exposed.”

In any event, even if the case moves forward with greater transparency now, one mystery does linger: the question of who, exactly, wanted the hearings closed in the first place.

In his May order, Montalvo said the prosecution and defense teams had jointly requested secrecy during plea hearings, and that “on most if not all occasions, the Government made an oral motion at each plea hearing for closure of the proceedings and sealing of records, without objection from defense counsel.”

Because the parties themselves requested the sealing, he added, there was no reason to worry that secrecy might impinge on the fair trial rights of the defendants.

But tucked away in a footnote of its response this fall to the El Paso Media Group, the prosecution, at least, disagreed: “A review of the transcripts of the eight closed plea hearings reflects the government made no such motions.” In his Oct. 4 opinion, Montalvo replied, “While this is true, the Court notes counsel for the Government and the Defendant met in chambers prior to each plea hearing.” Based on the compelling interests discussed in chambers, the court said, it decided to close the proceedings.